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Authors

Abstract

This paper takes up the political theory sketched by the Office of Legal Counsel memorandum of August 1, 2002. That memorandum proposed a theory of executive emergency powers, including the power to use torturous interrogation techniques otherwise barred by domestic and international law. According to the memorandum, both the power to deploy torture and other forms of coercive interrogation, and the general freedom of the executive to direct policy in times of war, are grounded in a justification of necessity. The central aim of my paper is to explore the force and limits of necessity claims in moral and political theory. I argue that we must distinguish two concepts of rights, one that designates the protections and goals around which political institutions are built, and another that operates within political institutions, and is subject to welfarist overrides. Instances of the former are core human rights protections; instances of the latter are rights over property. We must also distinguish between two concepts of necessity, as fact and as justification. When necessity is deployed as a forward-looking justification, it vitiates the content of the principles it claims to override, and lends itself to the psychological and institutional abuses. Understanding necessity as fact, by contrast, demands that we resist the impulse towards justifying and institutionalizing the exception, while acknowledging the limits of our principles.

I also pursue in this paper the parallels between the Administration’s claims of emergency power and exceptional justification, and the political theory of German constitutional theorist Carl Schmitt. As with Schmitt’s theory, the administration’s theory gains executive effectiveness at the cost of rejecting two of the deepest legacies of the Enlightenment: the inviolability of the individual and the priority of right to power.

Disciplines

Criminal Law | Criminal Procedure | Jurisprudence | Public Law and Legal Theory